May 7, 2015

A federal appeals court in New York on Thursday ruled that the once-secret National Security Agency program that is systematically collecting Americans’ phone records in bulk is illegal. The decision comes as a fight in Congress is intensifying over whether to end and replace the program, or to extend it without changes.

In a 97-page ruling, a three-judge panel for the United States Court of Appeals for the Second Circuit held that a provision of the U.S.A. Patriot Act, known as Section 215, cannot be legitimately interpreted to allow the bulk collection of domestic calling records.

I personally enjoy the closing components, where the Court refuses to let Congress off the hook:

We note that at the present time, §215 is scheduled to expire in just several weeks. The government vigorously contends that the program is necessary for maintaining national security, which of course is a public interest of the highest order. Allowing the program to remain in place for a few weeks while Congress decides whether and under what conditions it should continue is a lesser intrusion on appellants’ privacy than they faced at the time this litigation began. In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape.

Moreover, given the necessity of congressional action, the statutory issues on which we rest our decision could become moot (at least as far as the future of the telephone metadata program is concerned), and the constitutional issues appellants continue to press radically altered, by events that will occur in a short time frame. If Congress decides to authorize the collection of the data desired by the government under conditions identical to those now in place, the program will continue in the future under that authorization. There will be time then to address appellants’ constitutional issues, which may be significantly altered by the findings made, and conclusions reached, by the political branches, and to decide what if any relief appellants are entitled to based on our finding that the program as it has operated to date is unlawful. If Congress decides to institute a substantially modified program, the constitutional issues will certainly differ considerably from those currently raised. If Congress fails to reauthorize §215 itself, or reenacts §215 without expanding it to authorize the telephone metadata program, there will be no need for prospective relief, since the program will end, and once again there will be time to address what if any relief is required in terms of the data already acquired by the government. We believe that such issues will be best addressed in the first instance by the district court in due course.

CONCLUSION

This case serves as an example of the increasing complexity of balancing the paramount interest in protecting the security of our nation - a job in which, as the President has stated, “actions are second-guessed, success is unreported, and failure can be catastrophic,” Remarks by the President on Review of Signals Intelligence - with the privacy interests of its citizens in a world where surveillance capabilities are vast and where it is difficult if not impossible to avoid exposing a wealth of information about oneself to those surveillance mechanisms. Reconciling the clash of these values requires productive contribution from all three branches of government, each of which is uniquely suited to the task in its own way.

For the foregoing reasons, we conclude that the district court erred in ruling that §215 authorizes the telephone metadata collection program, and instead hold that the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates §215. Accordingly, we VACATE the district court’s judgment dismissing the complaint and REMAND the case to the district court for further proceedings consistent with this opinion.

May 4, 2015

This Fair Use Index is a project undertaken by the Office of the Register in support of the 2013 Joint Strategic Plan on Intellectual Property Enforcement of the Office of the Intellectual Property Enforcement Coordinator (IPEC). Fair use is a longstanding and vital aspect of American copyright law. The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).

December 8, 2014

The video accompanying the NYTimes “Retro Report” on Napster,Grappling with the ‘Culture of Free’ in Napster’s Aftermath [pdf] is pretty good, although the article text still hews to the “piracy” framing of the issue. Unfortunately, I have no idea how to embed the NYTimes video here, but it’s worth a viewing. A chance to go down memory lane…

The video, along with some interviews with artists, can also be viewed at the associated Making Music in the Digital Age webpage. Ingrid Michaelson, Amanda Palmer, David Lowery, and Tommy Emmanuel give their own takes, which can give you certain pause — particularly their own difficulties reconciling the economics of production with the production of their art. Amanda Palmer, in particular, asks a really good question, while Tommy Emmanuel and David Lowery offer opposing perspectives on the realities of the music business today. Ingrid Michaelson’s interview, more than any of the other three, illustrates the confusion that is the legacy of the peculiar dialectics of music production over the past century, and the way that the art, law, and technology have evolved to sustain the peculiar framings of “creativity.”

This case is the latest skirmish in the long-running copyright battle over the delivery of television programming. Petitioners, a collection of television networks and affiliates (Networks), broadcast copyrighted programs on the public airwaves for all to see. Aereo, respondent, operates an automated system that allows subscribers to receive, on Internet-connected devices, programs that they select, including the Networks’ copyrighted programs. The Networks sued Aereo for several forms of copyright infringement, but we are here concerned with a single claim: that Aereo violates the Networks’ “exclusive righ[t]” to “perform” their programs “publicly.” 17 U. S. C. §106(4). That claim fails at the very outset because Aereo does not “perform” at all. The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (”looks-like-cable-TV”) that will sow confusion for years to come.

February 18, 2014

Visitors to Terminal B at Newark Liberty International Airport may notice the bright, clean lighting that now blankets the cavernous interior, courtesy of 171 recently installed LED fixtures. But they probably will not realize that the light fixtures are the backbone of a system that is watching them.

Using an array of sensors and eight video cameras around the terminal, the light fixtures are part of a new wireless network that collects and feeds data into software that can spot long lines, recognize license plates and even identify suspicious activity, sending alerts to the appropriate staff.

December 16, 2013

A Federal District Court judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, and he ordered the government to stop collecting data on two plaintiffs’ personal calls and destroy the records of their calling history.

From the Conclusion of the decision:

This case is yet the latest chapter in the Judiciary’s continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens. The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable. In the months ahead, other Article III courts, no doubt, will wrestle to find the proper balance consistent with our constitutional system. But, in the meantime, for all the above reasons, I will grant [the] requests for an injunction and enter an order that (1) bars the Government from collecting, as part of the NSA’s Bulk Telephony Metadata Program, any telephone metadata associated with [plaintiffs'] personal Verizon accounts and (2) requires the Government to destroy any such metadata in its possession that was collected through the bulk collection program.

However, in light of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal….

Since 2004, when it announced agreements with several major research libraries to digitally copy books in their collections, defendant Google Inc. (”Google”) has scanned more than twenty million books. It has delivered digital copies to participating libraries, created an electronic database of books, and made text available for online searching through the use of “snippets.” Many of the books scanned by Google, however, were under copyright, and Google did not obtain permission from the copyright holders for these usages of their copyrighted works. As a consequence, in 2005, plaintiffs brought this class action charging Google with copyright infringement.

Before the Court are the parties’ cross-motions for summary judgment with respect to Google’s defense of fair use under § 107 of the Copyright Act, 17 U.S.C. § 107. For the reasons set forth below, Goggle’s motion for summary judgment is granted and plaintiffs’ motion for partial summary judgment is
denied. Accordingly, judgment will be entered in favor of Google dismissing the case.

James Grimmelmann, a professor of law at the University of Maryland who has followed the case closely, called the ruling “a win for Google and a big win for libraries and researchers.”

The judge “argues that authors didn’t lose much because it’s not like they were losing sales to Google Books,” Mr. Grimmelmann said. “The Authors Guild, on the other hand, loses a lot of face from this.”

[…] “By taking eight years from the lawsuit to resolve this, book scanning has gone from an exciting novelty to part of the background of the industry,” he said. “This has been going on for so long that it’s just part of the business now. And you’re seeing how many exciting new uses that can come out of it.”

September 30, 2013

On Monday, Representative Melvin L. Watt, a Democrat from North Carolina, introduced the Free Market Royalty Act, a bill that would let record companies and performing artists collect royalties when their songs are played on the radio. It would also change the licensing process for both broadcast radio and online services that approximate radio, like Pandora, establishing a market for these services to negotiate rates with the rights holders.

Broadcasters in the United States pay only songwriters and music publishers; for nearly a century, they have argued that the promotional value an artist receives from having a song played on the radio is remuneration enough. Repeated efforts by the music industry have failed to establish such a royalty on the radio, and while laws in the 1990s created it online, Web services complain that they have been burdened with a cost not shared by terrestrial radio.

Mr. Watt’s bill would establish a performance right for AM and FM radio. In an ambitious move, it would also eliminate the compulsory licensing process that lets services like Pandora and Sirius XM circumvent labels by paying a rate set by federal statute. Instead, under the system proposed by Mr. Watt’s bill, radio and online outlets alike would have to negotiate for rights through a market administered by SoundExchange, a nonprofit agency, giving labels and artists the right of refusal.

[...] The National Association of Broadcasters, the radio industry’s lobbying outlet, reiterated its longstanding opposition, calling the royalty a “performance tax” and saying that 183 members of Congress had supported its preferred bill, the Local Radio Freedom Act [H.CON.RES.16], a nonbinding resolution against “any new performance fee, tax, royalty or other charge” on radio stations.

Of course, this is more important than a continuing resolution, but it’s always interesting to see when these things turn up. I’d give the Thomas link to the text of the bill, but I doubt it’ll be posted before the government shuts down tonight at 12:01.

September 23, 2013

Supreme Court opinions have come down with a bad case of link rot. According to a new study, 49 percent of the hyperlinks in Supreme Court decisions no longer work.

[...]

Hyperlinks are a huge and welcome convenience, of course, said Jonathan Zittrain, who teaches law and computer science at Harvard and who prepared the study with Kendra Albert, a law student there. “Things are readily accessible,” he said, “until they aren’t.”

What is lost, Professor Zittrain said, can be crucial. “Often the footnotes and citations,” he said, “are where the action is.”

September 5, 2013

The agency has circumvented or cracked much of the encryption, or digital scrambling, that guards global commerce and banking systems, protects sensitive data like trade secrets and medical records, and automatically secures the e-mails, Web searches, Internet chats and phone calls of Americans and others around the world, the documents show.

Many users assume — or have been assured by Internet companies — that their data is safe from prying eyes, including those of the government, and the N.S.A. wants to keep it that way. The agency treats its recent successes in deciphering protected information as among its most closely guarded secrets, restricted to those cleared for a highly classified program code-named Bullrun, according to the documents, provided by Edward J. Snowden, the former N.S.A. contractor.

August 27, 2013

But that is exactly what Australian record company Liberation Music did when it threatened to sue Lessig, a leading scholar of Internet law and an advocate for fewer copyright restrictions, for allegedly violating its rights by using music from the hit song “Lisztomania” by French pop band Phoenix during a lecture.

Liberation Music claimed to own the license for the 2009 song, which became so popular that fans, college students, and choruses from around the world made their own dance videos to the music and posted them on YouTube, creating something of a global Internet phenomenon.

Lessig used the phenomenon and excerpts from the dance videos in a 2010 lecture that he recorded and also posted to YouTube, prompting the legal warning from Liberation Music.

Now, Lessig is fighting back with his own legal action.

So, an interesting challenge, in that there is, first, the overall “fair use” doctrine — a nice idea, but one that means that a definitive finding of fair use, should there be a disagreement, requires an adjudicated review; second, there is legislation ensuring fair use in academic use, thus taking some of the transactional costs of adjudication off the table; and, third, there is an open question on what happens when one digitizes and distributes academic material containing copyrighted materials whose use in that context would ordinarily be considered to be covered under fair use.

It’s been a challenge for academic institutions moving instruction online, and should be a great fight, since Larry has been passionate about this.

Finally, it’s worth thinking about the distinctions between this approach to tackling copyright injustices and that of Aaron Swartz.

Later: When even John Sununu takes time out from using his guest Tea-Party-rousing-columnist role at the Boston Globe to agree with Larry, you know that Liberation Music has really stepped in it: Music dinosaurs pick a bad fight [pdf]

August 4, 2013

We know that you are fighting over lucre, not our inalienable rights as cable consumers. Pretending that you are fighting on our behalf rather than in the interests of your shareholders and executives is infantilizing and unbecoming. CBS is coming off another record year, Time Warner Cable’s stock is storming along, and the fight over retransmission fees is about how the pie is sliced, nothing more.

June 13, 2013

Respondent Myriad Genetics, Inc. (Myriad), discovered the precise location and sequence of two human genes, mutations of which can substantially increase the risks of breast and ovarian cancer. Myriad obtained a number of patents based upon its discovery. This case involves claims from three of them and requires us to resolve whether a naturally occurring segment of deoxyribonucleic acid (DNA) is patent eligible under 35 U. S. C. §101 by virtue of its isolation from the rest of the human genome. We also address the patent eligibility of synthetically created DNA known as complementary DNA (cDNA), which contains the same protein-coding information found in a segment of natural DNA but omits portions within the DNA segment that do not code for proteins. For the reasons that follow, we hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but that cDNA is patent eligible because it is not naturally occurring. We, therefore, affirm in part and reverse in part the decision of the United States Court of Appeals for the Federal Circuit.

March 27, 2013

Before Napster and LimeWire, before Megauploads and the Pirate Bay, media companies’ epic struggle against copying, piracy and generally losing control over their creations can be traced to a legal fight more than 30 years ago over a device that has long since passed on to the great trash heap in the sky: the Sony Betamax.

[...] Last week, the Supreme Court made another call that could have equally far-reaching implications. The ruling referred only to printed books, another technology that predates the Internet. Yet it, too, is likely to reshape the information economy in unexpected ways.

In a 6-to-3 decision, the court took sides with Supap Kirtsaeng, a Thai math student at Cornell who generated roughly $900,000 in revenue reselling in the United States cheap textbooks that his friends and relatives sent from Thailand.

[...] The decision picks at the scab of an argument that has raged since the first copyright law was enacted in 18th-century Britain: how to balance the interest of copyright holders to profit from their creations — giving them an incentive to create more — against the social goal of promoting access to the movies, books and software programs they create.

Like the Betamax decision in 1984, the Supreme Court’s ruling last week underscores the challenges placed by globalization and information technology on the very idea of protecting intellectual property. It adds to a maze of laws, legal decisions and technological barriers governing what companies and people can do with their stuff in the new economy. And it will probably change the way companies deliver media.

Opponents of the DMCA anti-circumvention provision claim that the law threatens consumer control over the electronic devices we buy, and they’re right. But the stakes are much higher than that. Our cultural history is in jeopardy. If the DMCA remains unaltered, cultural scholarship will soon be conducted only at the behest of corporations, and public libraries may disappear entirely.

That’s because the DMCA attacks one of the of the fundamental pillars of human civilization: the sharing of knowledge and culture between generations. Under the DMCA, manmade mechanisms that prevent the sharing of information are backed with the force of law. And sharing is vital for the survival of information. Take that away, and you have a recipe for disaster.

[...] The anti-circumvention provision of the DMCA was created primarily to protect DVDs; it did not anticipate our rapid shift to media-independent digital cultural works, so it is absurdly myopic when it comes to digital preservation.

To properly preserve digital works, libraries must be able to copy and media-shift them with impunity. It may sound strange, but making a DRM-free copy of a digital work is the 21st century equivalent of simply buying a copy of a paper book and putting it on a shelf. A publisher can’t come along and take back that paper book, change its contents at any time, or go out of business and leave it unscrambled and unreadable. But publishers can (and have done) all three with DRM-protected works.

So why don’t librarians just defeat DRM, as it is often possible to do, and jailbreak Kindles and iPads to collect these materials? Because it’s illegal, of course. And if these chronically under-funded institutions want to keep their funding, they need to stay above the board.

February 26, 2013

[...] Respondents — attorneys and human rights, labor, legal, and media organizations — are United States persons who claim that they engage in sensitive international communications with individuals who they believe are likely targets of §1881a surveillance. On the day that the FISA Amendments Act was enacted, they filed suit, seeking a declaration that §1881a is facially unconstitutional and a permanent injunction against §1881a-authorized surveillance. The District Court found that respondents lacked standing, but the Second Circuit reversed, holding that respondents showed (1) an “objectively reasonable likelihood” that their communications will be intercepted at some time in the future, and (2) that they are suffering present injuries resulting from costly and burdensome measures they take to protect the confidentiality of their international communications from possible §1881a surveillance.

Held: Respondents do not have Article III standing. [...]

[...] ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

The paper, published Monday in the Proceedings of the National Academy of Sciences, helps explain why every one of nearly 150 drugs tested at huge expense in patients with sepsis has failed. The drug tests all were based on studies in mice. And mice, it turns out, have a disease that looks like sepsis in humans, but is very different from the human disease.

[...] The researchers found some interesting patterns and accumulated a large, rigorously collected data set that should help move the field forward, said Ronald W. Davis, a genomics expert at Stanford University and a lead author of the new paper. Some patterns seemed to predict who would survive and who would end up in intensive care, clinging to life and, often, dying.

The group had tried to publish its findings in several papers. One objection, Dr. Davis said, was that the researchers had not shown the same gene response had happened in mice.

[...] The study’s investigators tried for over a year to publish their paper showing that there was no relationship between the genetic responses of mice and those of humans. They submitted it to the publications Science and Nature, hoping to reach a wide audience. It was rejected from both.

Science and Nature said it was their policy not to comment on the fate of a rejected paper, or whether it had even been submitted to them. But, Ginger Pinholster of Science said, the journal accepts only about 7 percent of the nearly 13,000 papers submitted each year, so it is not uncommon for a paper to make the rounds.

Still, Dr. Davis said, reviewers did not point out scientific errors. Instead, he said, “the most common response was, ‘It has to be wrong. I don’t know why it is wrong, but it has to be wrong.’ ”

July 29, 2012

People almost everywhere are file sharing these days, using computers to download music, films, books or other materials, often ignoring copyrights. In Sweden, however, it is a religion. Really.

Even as this Scandinavian country, like other nations across Europe, bows to pressure from big media concerns to stop file sharing, a Swedish government agency this year registered as a bona fide religion a church whose central dogma is that file sharing is sacred.

“For me it is a kind of believing in deeper values than worldly values,” said Isak Gerson, a philosophy student at Uppsala University who helped found the church in 2010 and bears the title chief missionary. “You have it in your backbone.”

July 16, 2012

Richard O’Dwyer, an enterprising 24-year-old college student from northern England, has found himself in the middle of a fierce battle between two of America’s great exports: Hollywood and the Internet.

At issue is a Web site he started that helped visitors find American movies and television shows online. Although the site did not serve up pirated content, American authorities say it provided links to sites that did. The Obama administration is seeking to extradite Mr. O’Dwyer from Britain on criminal charges of copyright infringement. The possible punishment: 10 years in a United States prison.

The case is the government’s most far-reaching effort so far to crack down on foreigners suspected of breaking American laws. It is unusual because it goes after a middleman, who the authorities say made a fair amount of money by pointing people to pirated content. Mr. O’Dwyer’s backers say the prosecution goes too far, squelching his free-speech right to publish links to other Web sites.